Summary: Ms X complained the Council failed to provide suitable full-time alternative provision for her son Y when he was unable to attend school from September 2023 until July 2024. The Council delayed in responding to Ms X’s concerns which caused her frustration. The Council was not at fault in its actions around Y’s attendance and education. The Council should apologise to Ms X for the avoidable frustration she was caused.

The complaint

1. Ms X complained the Council failed to provide suitable full-time alternative provision for her son Y when he was unable to attend school from September 2023 until July 2024. Ms X said this had a huge impact on Y’s emotional health and wellbeing and he missed education and social opportunities, and she had to leave her employment as a result. Ms X wanted the Council to provide suitable alternative education and provide compensation to the family.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
5. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
6. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

8. I have investigated events since September 2023 until March 2024 when Ms X brought her complaint to us.
9. I have not investigated what happened after March 2024. This is because the Council has not yet been given an opportunity to investigate and reply to complaints about events after March 2024, as set out in paragraph 4.

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How I considered this complaint

10. I read the documents Ms X provided and discussed the complaint with her on the phone.
11. I considered the information the Council sent in response to my enquiries.
12. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant legislation and guidance

Section 19 education

13. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
14. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
15. The DfE guidance (Working together to improve school attendance) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 
16. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
17. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason that prevents them attending;
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases;
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

18. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore councils should retain oversight and control to ensure their duties are properly fulfilled.

Council’s response to contact

19. The Council’s expected response times for responding to emails and telephone calls is between three and five working days.

What happened

20. Y is a child of primary school age. At the time of these events he attended a mainstream school which provided additional support to him because he has some special educational needs.
21. Ms X contacted the Council at the beginning of September 2023. She said she was concerned about her son Y, who she said was unable to attend school full time. The Council contacted the school and asked it about Y’s attendance.
22. Ms X contacted the Council again at the beginning of October and raised the same concerns, Ms X said Y should go to a specialist provision. The Council told Ms X the school would offer Y support with attendance.
23. At the beginning of November the Council advised the school to implement a part-time timetable for Y. The school told the Council it was providing Y with two hours education four mornings a week.
24. Ms X complained to the Council in November that it was not providing a section 19 education for Y.
25. The Council responded to Ms X’s complaint and said it would consider Y’s education at an inclusion panel. It asked Ms X for medical evidence that Y was too unwell to attend school. Ms X said Y’s doctor said Y’s symptoms were due to neurodiversity rather than a clinical issue, and they had completed a referral to the Children and Adolescent Mental Health Service (CAMHS).
26. The Council’s autism team met with the school at the end of November and provided advice on the actions the school should take to support Y back to school full time.
27. The Council held an inclusion panel meeting in mid-December. The school and relevant Council officers from the attendance, special educational needs and autism teams attended. The panel considered there was a part-time timetable in place to support Y’s re-integration, which was due to be reviewed. It recorded Ms X had been privately funding a forest school (a type of alternative provision delivered outside) which the school would take over arranging. The school said it would provide forest school sessions at the school from February 2024. The school was employing a teaching assistant to support Y with reading from January and had implemented emotional literacy support. It considered the school was implementing the advice the autism team had given it about reintegrating Y. It said there was no evidence of a medical reason Y could not attend school.
28. The panel decided Y had suitable education provision at the school he was attending, which had made reasonable adjustments to support him. The panel recommended the school continue to build the timetable up in increments as suitable to Y’s needs and review it every six weeks.
29. The Council’s inclusion team met with the school to discuss the support it could offer Y. At the end of the month the school provided an update on Y’s part time timetable. It said it was working well and Y’s time in school had increased. It said it intended to increase Y’s timetable incrementally in the new year.
30. Ms X contacted the Council in mid-January 2024 and said Y was not going to school at all and asked for alternative provision at two providers she had found.
31. The Council held a further panel meeting about Y’s education at the end of January. The school, Council officers and an Educational Psychologist (EP) who specialised in Emotionally Based School Non-Attendance (EBSNA) attended. It recorded it had received a medical report but Y still would not meet the medical needs tuition criteria. The school outlined the support it currently had in place. The Council agreed to provide online maths and English tuition for four weeks alongside the school’s offer. It said it would review it in four weeks with the intention of moving the online tuition in to the school building to support Y’s transition.
32. The panel meeting recommended the school should:
• provide Y access to school out of hours;
• refer Y to an educational psychologist;
• discuss with the school nurse if they could offer support; and
• refer Y to Speech and Language Therapy (SALT)
33. Y’s tuition began at the beginning of February.
34. Ms X complained again to the Council. She said Y was receiving six online tuition sessions a week which was insufficient and not full time. Ms X requested alternative provision to help Y reintegrate to full time with the two providers she had identified. Ms X said the lack of education was impacting the family and Ms X had to stop work to care for Y during school hours.
35. The school provided a review of the part time timetable in mid-February. It said Y’s attendance had decreased. It was facilitating music lessons, that Ms X funded, and offered technology lessons in school and was still attempting reintegration.
36. The Council responded to Ms X’s complaint. It did not uphold the complaint as the tuition it was providing was the section 19 alternative provision and was suitable for Y. The Council told Ms X it did not commission the two providers she had identified as alternative provision in these circumstances and only offered the tuition.
37. Ms X complained again to the Council and said the provision in place was not in line with section 19 as it was not full time or suitable. Ms X also complained the Council had failed to consult an EP specialising in EBSNA.
38. The Council declined to investigate Ms X’s complaint any further as it said it would not lead to a different outcome. It directed Ms X to complain to us if she remained dissatisfied.
39. Ms X told the Council in March that Y was receiving 6 sessions of 45 minutes tuition, a 30-minute music lesson (funded by Ms X), 60 minutes of drama lessons and 45 minutes of forest school. Y was receiving 11 hours and 25 minutes of provision.
40. The Council held a further panel meeting. The school, relevant Council officers and the EP attended the meeting. The records show Y was engaging well with the tuition and forest school. Ms X felt the tuition was not at a suitable level. The panel said it would see if there was a higher-level session for Y. The school said it had made all the reasonable adjustments it could to support Y. The panel recorded the school was employing a teaching assistant for four weeks to support Y’s social, emotional and mental health and transition back to school. It recorded the school would continue to offer the forest school and other sessions and the tuition would continue.
41. Dissatisfied with the Council’s response, Ms X complained to us.

My findings

42. Our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
43. When Ms X contacted the Council about her concerns about Y’s attendance, the Council did not respond for a month. It then told her the school would provide the support. The Council did not properly consider whether it owed Y a section 19 education until November, which was a delay of six weeks and was fault. The delay caused Ms X frustration. However it did not cause Y an injustice for the reasons set out below.
44. When the Council considered Y’s attendance it looked at all the available information and discussed it with the relevant professionals involved with Y’s education. It initially decided the school was taking appropriate action and it did not owe a section 19 duty. It provided advice and guidance to the school from its autism and inclusion teams to support Y’s attendance.
45. The Council kept Y’s attendance, provision and part-time timetable under review. The Council considered all the available information from the relevant professionals, including the EP in January. It decided tuition, alongside the package provided by the school was appropriate to meet Y’s needs. It provided the tuition under section 19.
46. There was no fault in how the Council made its decisions about the section 19 education or the suitability of the education available to Y. As there was no fault in the Council’s decision making, I cannot question the outcome, even though Ms X disagrees.
47. Ms X said Y was entitled to a full-time education, which the Council had not offered. However, the Council acted in line with the guidance in recommending the school implement a part-time timetable to reintegrate Y to school. The Council kept the part-time timetable under review, it recommended additional actions and provisions at each review, which were implemented. As Y was struggling to access the part-time timetable there is no evidence that they would have been able to access a full-time timetable had it been offered to them.

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Agreed action

48. Within one month of this decision the Council will:
1. write to Ms X and apologise for the frustration caused to her by its initial delay in responding to her concerns about Y’s attendance. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I have recommended;
2. remind relevant staff to respond to parent’s concerns within three to five working days;
3. remind relevant staff to avoid drift and delay in considering whether a child should receive a section 19 education.
49. The Council will provide us with evidence it has complied with the above actions.

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Final decision

50. I have completed my investigation. I found fault causing injustice and the Council agreed to my recommendations to remedy that injustice and avoid the same fault occurring in the future.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman